FMCSA takes first step in regulating against coercion of truck drivers

By Jami Jones, managing editor

Drivers have long complained that violations of various regulations are a direct result of threats and coercion by motor carriers, shippers, receivers and brokers - and that nothing could be or was done about it.

Starting in January, the Federal Motor Carrier Safety Administration has the ability to take enforcement action on those who coerce drivers into violating the federal regs thanks to a final rule published Nov. 30, 2015.

"This is a positive first step in recognizing that drivers do not make decisions in isolation. Often, the decisions drivers make come about as a result of significant pressure and influence. They are not islands acting alone in the decision-making process," said Laura O'Neill-Kaumo, director of government affairs for the Owner-Operator Independent Drivers Association.

A long-standing roadblock on enforcing against coercive tactics has been that FMCSA did not have authority over shippers and receivers per se. The agency's regulatory umbrella did not reach that far. Through defining coercion and the perpetrators of coercion, that limitation has been lifted to an extent.

The regulation depends solely on drivers executing a complaint of coercion in such a way that they can articulate who is threatening some sort of adverse employment action and how the driver would be violating the regulations.

The regulation does not require drivers to cite specific regulations in the complaint; they will, however, have to articulate how they would be violating a rule. For example, the discussion included in the final rule said a driver could merely report "they told me to keep driving even when I hit 11 hours," or "there was no tread on the front tires; I could see the ply in a couple of places."

One key to the definition of coercion is that a threat by a motor carrier, shipper, receiver, or transportation intermediary, or their respective agents, officers or representatives is to withhold business, employment or work opportunities from, or to take or permit any adverse employment action against a driver.

In comments submitted, many scenarios were tossed out to the agency, which in essence explored the limits of what adverse employment action is. The agency said that refusing to hire a motor carrier in the future because a motor carrier could not provide drivers with available time and equipment to complete a load is a business decision. Conversely, false reports to a work history service (i.e., HireRight, formerly DAC) could be considered an adverse act.

The agency will investigate reports of coercion to the extent possible given the documentation and report of the driver.

The final rule dictates that the following be included in driver reports of coercion:

The driver's name, address, and telephone number;

The name and address of the person allegedly coercing the driver;

The provisions of the regulations that the driver alleges he or she was coerced to violate; and

A concise but complete statement of the facts relied upon to substantiate each allegation of coercion, including the date of each alleged violation.

Complaints must be filed within 90 days of the alleged event of coercion.

Violators of the regulation could face limited enforcement action, up to a $16,500 fine and even revocation of the motor carrier's authority, according to the final rule. The final rule went into effect Jan. 29.

The key to this rulemaking is it allows the agency to get to the source of regulatory violations. In the current regulatory process, the agency is limited to enforcing on the violation and not the cause of it.

"It will be interesting to see how this is enforced. We are hopeful that this issue sheds a new light on the pressure put upon drivers who often bear the brunt of responsibility for the entire supply chain's decisions," O'Neill-Kaumo said.
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